Old Age and Survivor's Insurance

Rescinded 1991

The wage earner specified in written statement that he did not wish to
file for benefits on behalf of his dependents because he had "no immediate
plans of retirement." Under applicable provisions of the Social Security
Act, it would not have been in the interest of the dependents to delay
filing for benefits solely because of wage earner's retirement plans.
HELD, the written statement raises sufficient doubt about wage
earner's intent with respect to filing for benefits on behalf of his
dependents which doubt is to be resolved in favor of finding intent to
file that such statement indicated such intention, as required by
Regulations No. 4, section 404.613(b).

A question has been raised concerning a written statement which was made
by the wage earner on behalf of his wife and child.
[1] Such statement reads as
follows:

"I do not wish to file for [my] wife and child now since I have no
immediate plans of retirement."

The specific issue raised was whether the quoted statement would qualify
as a written statement which indicates an intention to claim benefits on
behalf of another person as required by Regulations No. 4, section
404.613(b). [2]

Sections 202(b)(1)(A) and 202(d)(1)(A) prescribe the application
requirements for wife's and child's benefits respectively. In each case
the individual must have "filed application for . . . benefits." Section
404.613 of Social Security Administration Regulations No. 4 sets forth the
circumstances under which a written statement (rather than a prescribed
application form) may be considered to be an application for monthly
benefits. Section 404.613 also indicates the circumstances under which a
person other than the claimant may file a written statement on behalf of
the claimant.[3] In describing
the type of written statement necessary, section 404.613(b) prescribes
that the statement must "[indicate] an intention to claim on behalf
of another person monthly benefits." (Emphasis supplied.) While section
404.613 does not make explicit reference to "doubtful intents," it clearly
does not preclude SSA from finding an intent to file where a written
statement raises doubt about an individual's intent to file. Section
404.613(c)(1) provides, in pertinent part, that once a written statement
has been received, notice in writing shall be sent to the claimant (or
where the claimant is a minor or incompetent, to the person submitting the
written statement on his behalf), stating that an individual determination
will be made with respect to such written statement if a prescribed
application form is filed with SSA within 6 months from the date of the
notice. Thus, if any doubt concerning an individual's intent to claim
benefits on behalf of another has been manifested by a written statement,
such doubt could be resolved by giving the individual the opportunity to
file a prescribed application form within 6 months from the date of SSA's
notice. The foregoing interpretation has been explicitly adopted as part
of SSA's operating procedures. These procedures provide that if some doubt
exists about intent to file, the doubt should be resolved by finding an
intent to file.

In light of the foregoing conclusions pertaining to the requisite intent
for purposes of the application requirement, the sole issue remaining to
be resolved with respect to the subject wage earner's statement is whether
it did in fact raise doubt about his intent to file on behalf of his wife
and child. The only evidence concerning the wage earner's intent with
respect to the purported filing for his wife and child was the statement
previously quoted and specific reference to his wife and child (see
footnote 1) on the wage earner's application. The written statement
indicates that the wage earner's sole reason for not wishing to file for
benefits was his concern that his retirement plans would in some way make
it disadvantageous for him to file or at least nullify any advantages that
may arise from the filing. This simply is not the case, however. It
clearly would have been advantageous under applicable provisions of the
Social Security Act for him to have filed regardless of his retirement
plans.

If a wage earner files an application on behalf of his dependents within
one year of the month of their initial eligibility for benefits
(henceforth referred to as a "timely" filing) his dependents are assured
of receiving all benefit payments which are not precluded by the annual
earnings test (or by another deduction or on payment provision) for the
duration of their entitlement. Such assurance is quite important due to
the many uncertainties inherent in the application of the annual earnings
test [4]and the possibility that
the wage earner may not be diligent in applying for benefits once it
appears that such test will no longer preclude payments. Further, a timely
filing by dependents can sometimes work to the advantage of the family in
the application of the annual earnings test. Newly entitled dependents
increase the amount of the family's benefits against which work deductions
may be imposed. Thus, in some instances, a family with entitled dependents
may be able to receive benefits for part of a year even though no benefits
would have been payable to the wage earner if solely he were entitled.
While it is generally to the advantage of both wage earner and dependents
for the dependents to make a timely application, we are aware of no
countervailing disadvantages associated with a timely filing under the
circumstances present here.

Accordingly, since it would not have been in the interest of the wage
earner's dependents to have their filing delayed solely because of the
wage earner's retirement plans and since the wage earner indicated in his
written statement that the absence of plans to retire was the basis for
his purported wish not to file, the written statement may be view by SSA
as raising doubt about the wage earner's intent to file and that SSA may
find that the wage earner did intend to file as required by section
404.613(b). [5]

[1] The statement was included
on the wage earner's application for retirement insurance benefits. In
addition to the statement, the wage earner makes specific reference on the
application to his wife and his son.

[2] It does not appear that an
individual could meet the application requirement for monthly benefits by
manifesting an intent couched in terms of a future contingency. The
regulatory scheme implementing the statutory application requirement does
not authorize the Social Security Administration to hold in abeyance a
purported application or written statement until the Social Security
Administration had been able to verify the occurrence of some future event
designated by the individual in such application or statement.

[3] Under the facts raised here,
the subject wage earner would be permitted to file a written statement of
intent on behalf of his spouse and his son. Section 404.613(b)(2)(i) and
(ii) of Social Security Administration Regulations No. 4. Thus, if the
Social Security Administration finds that his statement manifested the
requisite intent to claim benefits, such statement may serve as
application for both spouse and son.

[4] "Uncertainties" which affect
the imposition of work deductions include changes in the level of the wage
earner's annual earnings as well as fluctuations in earnings from month to
month during the year, changes in the number of individuals who are
entitled to his account, statutory changes affecting the nature of the
test itself. Uncertainties such as these make it difficult for individuals
to predict whether benefits otherwise payable to them or their dependents
would be precluded by the test.

[5] The U.S. Court of Appeals
for the Second Circuit held that a written statement which closely
paralleled the written statement made her qualified under section
404.613(a) as a field "written statement" . . . that indicates an
intention to claim monthly benefits." Widermann v. Richardson, 451
F.2d 1228 (2d Cir., 1971).